Parenting Coordinators Update Roster List

The BC Parenting Coordinators Roster Society has expanded its roster. The society now boasts a total of 34 accredited parenting coordinators and improved availability across the province, with members practicing in:

• Cranbrook
• Fort St. John
• Kelowna
• Nanaimo
  
• North Vancouver
• Port Coquitlam
  
• Richmond
• Surrey
  
• Vancouver
• Victoria

In August this year, the society announced its adoption of the Guidelines for Parenting Coordination (PDF) of the Association of Family and Conciliation Courts as the practice standards of its members and published its criteria for admission to the society as a parenting coordinator.

Dial-A-Law Updates Family Law Scripts

Dial-A-Law, a public legal information project of the Canadian Bar Association BC Branch, has just published a complete overhaul of its online library of family law scripts which, among other things, brings them up to date with the new Supreme Court Family Rules. The updated scripts address a wide range of family law issues, from divorce and annulment, to custody and guardianship, to child protection and family violence. A new script provides a general introduction to family law and the family court process.

The complete collection of Dial-A-Law scripts can be accessed at www.dialalaw.org or by calling 604.687.4680 in the Lower Mainland and 1.800.565.5297 elsewhere in British Columbia.

Practical Tips for Dealing with the Application Prone Litigant

A disproportionately small number of litigants are responsible for a surprisingly large amount of litigation. These high-conflict couples, usually estimated at five to ten percent of the divorcing population, will find themselves in court on dozen or more chambers applications before trial, and back in court on a half-dozen or more chambers applications after trial.

The problem for people stuck on the receiving end of a plague of applications is that they must reply to each and every application or risk a judgment being made in default and, if they have lawyers, the cost can be crippling. Unfortunately there's no rule of court that screens out hopeless applications or puts a limit on the number of applications that can be made. Here are some options.

Costs, costs and more costs

"Costs" are a financial penalty usually awarded against the party whose position was the most unrealistic or most unreasonable in a court action. (Costs aren't a lawyer's bill, it's an amount calculated using the formula set out in Appendix B of the Supreme Court Family Rules.) Costs can also be awarded for applications made in the course of a court action.

Most of the time, the costs of applications are determined when costs of the court action are being decided. However, under Rule 16-1 the court can make an order about costs when an application has been heard and make an order that they be payable right away. Rule 16-1(13) also allows a party's conduct to be taken in account when determining costs:

If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

It's fairly rare for costs to awarded right away for family law applications. If the court believes that the applicant is acting in good faith and has reasonably brought his or her application, the court will usually say nothing about costs, leave it to the trial judge to make a decision about costs, or say that the person who is ultimately most successful when the court action is determined will have his or her costs of the application (called "costs in the cause"). Where the applicant has obviously been unreasonable or brought his or her application in bad faith, however, the court may order that:

1. the application respondent have his or her costs of the application no matter what happens with the trial (called "costs in any event of the cause");
2. the application respondent have his or her costs of the application payable right away; or,
3. the applicant pay a fixed amount as costs to the application respondent right away (called "lump-sum costs").

Lump-sum costs are the most punitive because they require the money to be paid right away, not when the trial has come to an end. At the other end of the spectrum are awards of costs in the cause, which are hardly punitive at all.

When it comes to dealing with someone who's application prone and unreasonable, you need to start keeping a list of the dates you've been in court and orders the other side was asking for.

• Assuming you're successful, you need to start asking for your costs of each application in any event of the cause.
• When it's your second or third application on more or less the same subject, you need to start complaining about how often the other side has dragged you into court and ask for your costs of each application payable right away.
• When you can prove that the other side is acting in bad faith or intentionally wasting your time, you need to ask for your costs of the application in a fixed lump-sum payable right away.

If the court has made a lump-sum costs award that the other side hasn't paid, you can raise the outstanding costs order as an initial objection to any further applications.

Ask the judge to seize him- or herself of the case

When a judge "seizes" him- or herself of a case, it means that the judge will be the only judge to hear all future applications until the case goes to trial or the judge has finally had enough. (Judges who seize themselves of applications like this usually won't hear the trial of the action.) This can be very handy because it means that the judge will learn all about the other side's issues in fairly short order, and hopefully get a bit jaded about the urgency of every new application. Otherwise, particularly in larger centres like Vancouver, Victoria and New Westminster, there's a good chance that each application will be heard by a new judge, giving the other side a change to make his or her pitch afresh.

Many judges are understandably reluctant to seize themselves of applications like this. It can be very difficult and very time consuming, and often require the judge to make him- or herself available to hear an application on short notice or while engaged in something else like a trial. When a judge will seize him- or herself of a file, however, it's an absolutely wonderful thing.

When it comes to dealing with someone who's application prone and it's clear that there's no end in sight to the number of applications you're going to have to deal with, you need to start asking the judges who are hearing the other side's applications if they will consider seizing themselves of further applications brought in the action. Although you should expect to be turned down, if you don't ask it'll never happen.

Ask for an order that permission be obtained for further applications

Finally, s. 18 of the Supreme Court Act says this:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In other word, if you can show that the other side has persistently brought unreasonable applications against you, you may be able to ask the court for an order that he or she not bring any further applications without first getting permission from a judge. Similar orders may be made by case management judges or the judge hearing a Judicial Case Conference.

This really is a heavy hammer, and the court won't make an order like this unless it is clear that someone really is behaving unreasonably and capriciously. Don't expect the court to make this sort of order lightly, and don't ask for it without getting advise from a lawyer first. The last thing you want is to come across as over-the-top as the other party!

The Revenge of Facebook, Part II

For many folks, it seems that this is not in fact the most wonderful time of year. It turns out that this is the time of year when you're most likely to be dumping or being dumped.

Journalist David McCandless has used Facebook status updates, more than 10,000 of them, to figure out when we're most likely to leave a relationship. It turns out that Mondays are bad, so is the start of the summer holidays, but the two weeks before Christmas are second only to the beginning of spring break.

Separated with Children Financial Workshop

The Justice Education Society is hosting two workshops in the new year to help parents deal with the legal, emotional, social and financial turmoil of separation. The workshops will deal with:

• becoming financially independent
• dealing with your ex and children about money
• budgeting and debt issues
• child support, spousal support and property divisions issues

The workshops are free. You just need to register ahead of time. Call the society at 604-775-0856 in the lower mainland or at 1-800-775-0856 from elsewhere.

Vancouver
Monday 21 February 2011, 6:30 to 9:30 pm

Port Coquitlam
Wednesday 23 March 2011, 6:00 to 9:00pm

The Ins and Outs of Separation... Part IV:Section 57 Declarations

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

A "section 57 declaration" is a judicial declaration, pursuant to s. 57 of the Family Relations Act, that a married couple have "no reasonable prospect of reconciliation with each other" and is often made when a couple have started a legal action. This sort of declaration probably seems a bit pointless, and it would be completely pointless except for s. 56 of the act:

• s. 56(1) says that a married spouse is entitled to "an interest" in the family assets when declaration under s. 57 is made
  
• s. 56(2) says that the interest is "an undivided half interest in the family assets as a tenant in common"
  

While a couple are married, the legal ownership of their assets is as the asset is owned. If the car is registered in Jane's name, it's Jane's car as far as ICBC, her creditors and her trustee in bankruptcy are concerned. Although s. 56 of the Family Relations Act says that Jane and John are each presumptively entitled to half the value of Jane's car (and s. 65 allows either of them to ask for more than half), the value won't distributed until trial or settlement. The effect of a s. 57 declaration is to divide the legal ownership of the car right away; it crystallizes each spouse's presumptive one-half interest in the family assets until the property is dealt with at trial or settlement.

The legal effect of a s. 57 declaration

As you likely guess, s. 57 declarations can be really important. The declaration:

1. converts the ownership of property spouses own as joint tenants into equal ownership as tenants in common;
2. where property is owned by only one spouse, vests a half interest in each spouse as tenants in common;
3. fixes the pool of property available for distribution between the spouses; and,
4. sets a date for the valuation of the property, including the presumptive termination date of each spouse's interest in the other spouse's pension.
   

Let me explain the bit about owning property as joint tenants and tenants in common. When two or more people own something as joint tenants, they all own the whole thing. There isn't one-half or one-quarter to point to and say "this part here is mine." When a joint tenant dies, his or her interest simply evaporates and the surviving joint tenants continue to own the whole property. When two or more people own something as tenants in common, however, they each own their individual slices of the pie. They can sell or borrow against their shares of the property as they each see fit, and when a tenant in common dies, his or her interest transfers to his or her estate, to be dealt with according to the tenant's will.

Let me also explain the bit about fixing the pool of property available for division. Although property acquired after the date of a s. 57 declaration often remains the separate property of the spouse who bought it, this isn't the case for property bought with a family asset. In general, if the new property is bought with a family asset, like a new car bought using the family car as a trade-in, the new property will also qualify as a family asset and be subject to division.

When you want a s. 57 declaration and when you don't

You would particularly want a s. 57 declaration if your spouse has lots of creditors who might want to seize your spouse's property or if your spouse is likely going to go bankrupt. Once a s. 57 declaration has been made, a creditor can only take your spouse's half of the family assets and only half will vest in your spouse's trustee in bankruptcy.

On the other hand, might not want a s. 57 declaration if your spouse is likely to die and you and your spouse own valuable assets, like the family home, as joint tenants. If your spouse dies while you are joint tenants, you would continue to own the whole property after your spouse's death; if you have a s. 57 declaration, you will own the property as tenants in common and after your spouse's death, you would keep your half of the property while your spouse's half would go to his or her estate.

The law about s. 57 declarations can be complicated, and you really must speak to a lawyer to get proper advice about when you should be asking for a s. 57 declaration and when you shouldn't.

Update: 9 January 2011

Curiously, I've just bumped into two cases which illustrate the importance of s. 57 declarations, both of which concern pensions.

In Peck v. Peck, the parties separated in 2003 but a divorce action didn't get started until 2009. The wife sought a share of the husband's pension, and the husband argued that her interest in his pension should have ended in 2003 when they separated, not six years later when a s. 57 declaration was made in the divorce action. The court held that there was no reason to depart from the asset division scheme set out in the Family Relations Act and divided the pension as of the 2009 triggering event.

Similarly, in Wong v. Wong, the parties separated in 2005 but a divorce action didn't get going until 2008. At the trial in 2010, the husband asked the court to value his pension from the date of separation, not five years later at the trial. The court held that there was no reason to depart from the usual practice of dividing the pension as of the triggering event. In this case, the triggering event was the divorce trial as there hadn't been an earlier s. 57 declaration.

Update: 13 January 2011

And yet another recent case in a similar vein!

In Johnston v. Johnston, the parties married in 1985 and separated in 2005. The wife received half of the husband's pension accumulating during this period, as well as during the five year period which elapsed between separation and trial as there had been no prior triggering event. (In a somewhat unusual circumstance, the court also awarded the wife a half share of the husband's pension which accumulated during the three years that the parties lived together before marrying.)

Future posts

Separation is a surprisingly broad topic. If there's a topic you'd like me to discuss, please say so in a comment to this post.

Polygamy: The Legal Background

As you probably know, there's a hearing underway to determine whether the Criminal Code provisions criminalizing polygamy are consistent with the Charter of Rights and Freedoms. If so, we may well see prosecutions brought against some of the fine folks of Bountiful, British Columbia. There's a fascinating legal background to the hearing that the media really isn't covering, I suspect because it's probably only interesting to law nerds like myself.

A Recent History of the Common Law on Domestic Relations

Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.

As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.

One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.

Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.

The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!

The Legislation on Marriage and Divorce

The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.

The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:

"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."

(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)

The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.

Marriage and Divorce at the Dawn of the 20th Century

Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.

Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.

The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.

The federal Offences in Relation to Marriage Act of 1886 made it a crime to:

1. pretend to solemnize a marriage;
2. procure someone to solemnize a marriage who was not authorized to do so;
3. procure a feigned marriage; or,
4. marry someone while being married to someone else, in other words, to enter into a bigamous marriage.
   

About the same time, similar provisions were being introduced to the criminal law in Canada.

Bigamy, Polygamy and the Criminal Code

Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.

It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.

The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.

Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.

In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.

The Revenge of Facebook, Part I

I've often thought of writing about the modern mischief Facebook seems to egg on, but it's always seemed too easy a target. The notion of being "unfriended" just isn't as funny as it used to be. And then along comes Nesbitt v. Neufeld, a November 2010 decision of the Supreme Court of British Columbia, and I am reminded that there are still lessons to be learned.

Dr. Nesbitt and Ms. Neufeld had been engaged it what the judge described as "protracted family court litigation" and resulted in Ms. Neufeld having primary care of the child, with Dr. Nesbitt having supervised access. I'm sure the litigation rankled. In any event the recently-published decision of Mr. Justice Crawford concerns not the family law litigation but an action in which Ms. Neufeld sought damages for defamation and breach of privacy from Dr. Nesbitt.

Ms. Neufeld's complaints centred around a variety of publications the court found to be authored by Dr. Nesbitt, including the "Wicked Wendy Neufeld" website (some related material can still be found on blogspot) featuring material from the family law litigation and some of her private communications, and a Facebook page titled "Wendy Neufeld Support Group" containing hurtful and sarcastic comments. To quote the judge, "that Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness."

Anyhow, the point here is that we as a society are well past the posting of anonymous pages on telephone poles. We live in the internet age where the scurrilous vituperations of an aggrieved individual are spewed across the globe for all to read in a second, and, just as the audience is massive, all that's required to discover it is a single ego-search. Hit PRINT and the broadcast is there to be attached to your next affidavit as Exhibit "A". Again, here's Mr. Justice Crawford:

"In this age of instantaneous broadcast to an innumerable number of people over the Internet, courts have acknowledged the aggravating factor this can have in determining whether the conduct at issue is defamatory and if so what the quantum of an award of damages should be."

The judge decided that Dr. Nesbitt had taken his custody fight with Ms. Neufeld "far outside the ordinary confines of the family court litigation," and awarded damages of $40,000 to Ms. Neufeld for breach of privacy and defamation, plus her special costs of the litigation on the basis that Dr. Nesbitt's conduct was "deserving of the Court's reproof."

I have to admit that I see things like this fairly frequently in my practice, sometimes as a result of wounded feelings, but sometimes and far worse as a result of a desire for revenge or retaliation. I won't moralize and tsk-tsk about the stupidity of such websites, blogs and Facebook pages; that ought to be obvious. Just remember that it's as easy to find and print these things as it is to post them, and I guarantee that they will find their way into an affidavit at the most inconvenient time possible.

Changes to Supreme Court Chambers Practice

Changes continue to be made to the rules governing chambers practice in the Supreme Court. The most recent are set out in a civil Practice Direction (PDF), PD 28, and an Administrative Notice (PDF), AN 7. Both apply to family law matters.

PD 28 says this:

• Supply an extra copy of the Notice of Application (or Petition) with the Application Record, marked to show which orders will be spoken to at the hearing.
• Application Records will be accepted for filing between 9:00am three business days before the hearing and 4:00pm on the day that is one business day before the hearing. Application Records that are filed after 4:00pm will not be placed on the hearing list.
• Applications can be adjourned by filing a Requisition (Form F17) at any time before 9:00am on the day of the hearing. If you can't file the Requisition by the deadline, you'll have to show up in court and ask the judge or master for the adjournment.
• Applications that have been adjourned can be set for hearing again by filing a Requisition two business days before the new hearing date. The Requisition must: state the new date, time and place of hearing; briefly describe the nature of the application; give a time estimate; and, state whether the application is within the jurisdiction of a master.

The other civil practice directions which apply to family law matters are set out on the Supreme Court's website with the table of family law practice directions.

AN 7 says this:

• All briefs, records and submissions that are filed in a bound format must have a cover page.
• The cover page must: give the style of cause, including the court file number and registry; describe the nature of the material (ie: "Rule 11-3 Summary Trial Application" or "Claimant's Argument"); give the contact address and telephone number for the parties or their lawyers; state the time, date and place of the appearance for which the materials are filed; state the name of the party or lawyer filing the materials; and, where the materials relate to a hearing, give a time estimate for the hearing.

In case that was confusing, AN 7 has a helpful example of an approved cover page. I have posted a template of the form in the Resources & Links > The Courts chapter of my website (scroll down to the "Downloads" segment).

For more information on the new Supreme Court Family Rules, click on the "court rules" label below.

Legal Aid News and Updates

LSS Launches Legal Advice Telephone Service (updated 24 November 2010)

On 1 November 2010, the Legal Services Society, the organization that provides legal aid in British Columbia, launched the Telephone Advice Line, rebranded as the Family LawLINE shortly thereafter, to answer questions about family law issues. The Family LawLINE is staffed by two lawyers who are available from 9:30 to 12:30 on business days. The service is intended for people who do not have a lawyer and do not qualify for representation through legal aid.

Callers must meet the legal aid eligibility criteria for legal advice, a different standard than the eligibility criteria for legal representation, and will be screened before being put through to one of the lawyers.

To contact the Family LawLINE, call:

604-408-2172 if you're calling from the Lower Mainland
1-866-577-2525 if you're calling from elsewhere

I understand that calls will not be put through after 12:00.

This is not exactly a replacement for the former LawLINE, one of the services axed with the budget cuts implemented on 1 April 2010, but it's a start.

West Coast LEAF Publishes Report

On 9 November 2010, West Coast LEAF and the Canadian Centre for Policy Alternatives published a new report on legal aid in this province titled Rights-Based Legal Aid: Rebuilding BC's Broken System (PDF). The report provides a detailed review of the funding cuts suffered by the Legal Services Society since 2002 and the consequences of those cuts, and offers some recommendations about how to fix things.

LEAF recommends that the provincial legal aid system be revamped to provide services whenever human dignity is at stake and funding a mix of specialized legal aid clinics, private lawyers paid through a tariff system and staff lawyers in community-based non-profit organizations. The report is well written and deserves a read.

LEAF's other work on family law, legal aid and legal services includes:

• Mapping the Gap: A Summary of Legal Resources for Women in British Columbia, 2010 (PDF)
  
• Legal Aid Denied: Women and the Cuts to Legal Services in BC, 2004 (PDF)
• Access to Justice Denied: Women and Legal Aid in BC, 2000 (PDF)
  

CBC Reports Continuing Government Concern with Fraudulent Marriages: Sham, wow.

CBC has published a story on the federal government's recent interest in "cracking down" on marriages of convenience, marriages entered into for immigration purposes rather than conjugal. Although Citizenship and Immigration Canada has been aware of the issue for quite some time, the ministry has recently launched an online survey on the subject and the minister, Jason Kenney, has held public meetings in Montreal and Vancouver to collect opinions.

It's difficult to pick out exactly what the government's concerns are, although the CBC's summary of a 2007 CIC report uncovered by intrepid journalist David McKie says that:

"The investigation produced shocking revelations about the number and nature of the marriages, including ties to the sex trade, narcotics trafficking, embezzlement and human smuggling."

The more pressing problem, I think, is the emotional toll taken when the immigrating spouse finally arrives in Canada, after years of arguing with the CIC to obtain permanent resident status, only for the sponsoring spouse to discover that their marriage is a sham. As an earlier CBC story put it:

"The most common type of fraud occurs after Canadians sponsor foreign spouses to live with them. After being granted permanent residence, the new arrival lands in Canada and abandons the sponsor."

Assuming that the government's concern is to prevent this sort of mischief, the next question to address must involve the means available to government to combat marriage fraud while respecting the traditions of arranged marriage common to many cultures. How do you winnow out arranged marriages entered into in good faith from those entered into for immigration purposes alone?

Apart from (1) delaying citizenship status by two or three years from the date of immigration or the commencement of the spouses' cohabitation and (2) more strictly evaluating the formal validity of marriages, I really don't know what can be done about this difficult problem from a regulatory standpoint. (Aggrieved spouses can seek some relief through the courts, with occasional success as demonstrated by the 2006 case Raju v. Kumar, but this is a time-consuming and costly process with no guarantee of success.) I would be hesitant to resolve the problem by entirely shifting the burden to the sponsoring spouse on a sort of caveat emptor basis, but with the attention this problem has begun to receive I trust that potential sponsors will be more skeptical of the marriage proposals they receive.

The Ins and Outs of Separation... Part III:The Whens

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

Although a lot of people get hung up identifying the date of separation, getting the date precisely right is only critical in one specific situation: when spousal support is an issue for unmarried spouses. I'll discuss the date of separation in relation to married spouses first and then get to this issue involving unmarried spouses.

Divorce and the Date of Separation

Under the Divorce Act, there is only one ground for divorce: breakdown of the marriage. There are three reasons why marriage breakdown may have occurred: separation for a period of not less than one year, adultery or cruelty.

Most divorces are based on the spouses' separation. To calculate the required one year period you have to know when you separated, and the court forms used to claim a divorce, the Notice of Family Claim (Form F3) and the Counterclaim (Form F5), will ask you to state the date of separation. Under s. 8(2)(a) of the Divorce Act, the date of separation is the date when the spouses began to "live separate and apart."

Separation

I've written about how separation happens in previous posts. Here's a quick recap.

• The spouses don't have to agree to separate. All it takes is one spouse recognizing that the marriage is at an end and saying so.
• Merely living apart doesn't mean a couple have separated for the purposes of divorce. There must be a belief that the marriage is at an end.
• On the other hand, it isn't necessary for a couple to actually live apart; many separated couples continue to live under the same roof.
  

As a result, I think it's safe to say that the formal "date of separation" is the date on which a spouse forms the conclusion that the marriage is at an end and takes steps to terminate the marriage-like quality of the relationship. To avoid arguments about the date of separation, it's best if there is some sort of objective marker of separation, such as (a) a communication of the spouse's conclusion that the marriage is over, or (b) a spouse moving out.

Disputing the Date of Separation

Spouses rarely wind up arguing about the exact date of separation because in the vast majority of cases it's not very important. You don't need to be separated for one year before beginning the law suit claiming the divorce; most people have been separated for far more than a year when the court is finally asked to make a divorce order.

If the exact date of separation is argued, it's probably as a defence to the underlying divorce claim, to say, for example, that the spouses have not be living separate and apart for one year when the court is asked for the divorce order or that the spouses were not living separate and apart at the commencement of the law suit claiming the divorce. Arguments like these really only wind up postponing the inevitable and won't be effective to permanently block the divorce order.

If the exact date of separation is not argued, the date set out in the Notice of Family Claim or Counterclaim will do. The court rarely undertakes its own enquiry into the factual accuracy of the claimed date of separation.

Unmarried Spouses and Spousal Support

The Family Relations Act, at s. 1, says that a "spouse" includes someone who is married as well as someone who:

"... lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to leave together ..."

This is important because it defines how unmarried couples can qualify as common-law spouses (living together in marriage-like relationship for at least two years) and it says when a person loses the right to apply for an order based on the spousal relationship (one year after the date of separation). To be clear, this definition really only affects a common-law spouse's ability to apply for spousal support and a small number of personal protection orders, because orders about children rest on the definition of "parent", which has a different test, and because common-law couples cannot apply for orders about the division of assets under the act.

When a common-law spouse has a claim for spousal support, the date of separation is very important, more important than it is for married spouses: if the claim for spousal support is not made within one year from separation it cannot be made at all.

The date of separation for unmarried spouses is determined as it is for married spouses. When did one or both spouses reach the conclusion that the relationship was over? If just one spouse made this decision, when was the decision communicated? When did the marriage-like quality of the relationship end?

The Return of LawLINE?

LawLINE was one of the programs offered by the Legal Services Society, the organization that provides legal aid in British Columbia, that were terminated in 1 April 2010 as a result of cuts to the society's budget. LawLINE gave people telephone access to a lawyer for legal information and advice without having to pay for an initial consultation. From my point of view, programs like this are invaluable for people who might only have a small question that can be answered quickly and for people living in the more remote parts of the province; it was a real loss when the program was cut.

To get to the good news, I have heard from a reliable source that LSS may be reviving LawLINE in the next couple of months, or at least some other program that will look a lot like LawLINE. This is very welcome news indeed.

The Ins and Outs of Separation... Part II:Sex and New Relationships

Questions about sex and new relationships following separation are very, very common... Is it adultery to have sex with someone else after separation? If you're living with someone new, can you be in a common-law relationship before you've divorced? Is it okay to have sex with the spouse you've separated from? Thankfully the answers are pretty simple.

Sex with spouses

Yes, it's okay to have sex with your spouse after you've separated. It happens all the time. There are three things to be aware of.

First, from a legal point of view, s. 8(3)(b)(ii) of the Divorce Act says that married spouses can live together "with reconciliation as its primary purpose" for up to a total of ninety days following separation without stopping the clock on the one-year period of separation that has to pass to get a divorce. (Once more than ninety days have passed, the one-year period starts to run from the last separation.) Honestly, though, I don't see this as much of a problem. Spending the night with your spouse isn't going to count toward the ninety days unless you spent the night for the "primary purpose" of reconciliation rather than sex, which I rather doubt.

Second, if the legal ground for your divorce is based on your spouse's adultery or your spouse's cruelty toward you, you need to know that you may have been considered to have forgiven or "condoned" your spouse's misconduct if you have sex with your spouse after separation. Under s. 11(2) of the Divorce Act, an act of adultery or cruelty that has been condoned cannot be used as a ground for divorce.

(There aren't any legal problems with unmarried spouses or partners having sex after separation since a divorce isn't necessary to end unmarried relationships.)

Third, from an emotional point of view, you might want to think about what having sex with your spouse will do to the progress you've been making in getting over that relationship and building a life for yourself that doesn't include him or her. Lots of people are able to handle the messiness of sex with a separated spouse; other people find it to be emotionally difficult.

Sex with other people

As long as you're married, having sex with someone who isn't your spouse counts as adultery. If you're separated at the time however, no one except your in-laws or the Pope is going to care.

I suppose it's true that your spouse could claim adultery as the ground for your divorce, but if you've already separated from your spouse, your marriage would seem to have already come to an end for an entirely different reason than your adultery. Apart from this one issue about the legal ground for your divorce, having sex with someone else isn't going to have an impact on how your divorce is handled. It isn't relevant to whether spousal support is payable or not, how much child support will be paid, how property will be divided or what the parenting arrangements are going to look like.

(There's no such thing as adultery for unmarried couples, since you have to be married in order for sex with someone other than your partner to count as adultery.)

New relationships

As I often tell my clients, there's nothing a separated married person can't do that a single person can, except to get married. Apart from that, a separated married person can see other people, date other people, have children with other people and live with other people.

What's interesting about all of this is that there's nothing stopping a person who's married to someone qualifying as someone else's common-law spouse. Under the Family Relations Act, "spouse" includes, in addition to people who have been married, people who have lived together in a "marriage-like relationship" for at least two years. In other words, if it's taking awhile to get your divorce and you've moved in with someone else, you could have two legal spouses: the person you're still married to and the person you've been living with. Surprise!

I talk about the legal consequences of having two spouses in the Marriage & Divorce > Separation chapter of my website.

Future posts

Separation is a broad subject. If there's something you'd like me to discuss, please say so in a comment to this post. Click on the "separation" label below to read other posts about separation.

Okay, so there's (probably) a new law coming. Now what?

Important Update: The Family Law Act was introduced on 14 November 2011. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

Readers of this blog, or any local newspaper really, will know that the provincial government is planning on introducing a brand new Family Law Act sometime in 2011 that will revolutionize family law in British Columbia. I've summarized the proposed new Family Law Act in a previous post.

In September, I published another post which talked about how bill becomes a law and how a law comes into force. One of the points I was trying to make was that the Family Law Act described in the government's White Paper (PDF) doesn't have any legal effect at present and may not look anything like the Family Law Act that comes into force, and a result you shouldn't make any decisions on assumptions drawn from the White Paper.

That being said, I was recently consulted by a fellow who wanted a cohabitation agreement. (I have written at length about why cohabitation agreements are a really bad idea under the current law if the point of the agreement is supposed to be about protecting property; read my post on the subject, "Why you DON'T want a cohabitation agreement," before continuing.) This is an important problem because if the new law looks anything like the White Paper's proposal, the property interests of common-law couples and married couples are going to look very different than they do right now and, either way, the dilemma posed by s. 120.1 of the Family Relations Act will no longer exist.

So what do you do now? Frankly, I'm not sure, and any answer is going to involve an awful lot of assumptions.

If the Family Relations Act is replaced and if the new act looks like the White Paper's proposal, lots of things are going to be different:

• common-law couples will have the same property entitlements as married couples
• the value of property brought into the relationship will be excluded from sharing, as well as certain other kinds of property like court awards and inheritances
• property bought with excluded property will also be excluded from sharing
• agreements about property will only be set aside where there is a defect in the agreement or how the agreement was entered into, such as a misunderstanding about the nature of the agreement or a failure to disclose the existence of an asset

In circumstances like this, it's not clear what a marriage or cohabitation agreement about property might accomplish. Perhaps such agreements would more clearly define which assets are excluded from sharing, or address how excluded property will used during the relationship. Perhaps they would attempt to regulate how property acquired during the relationship will be paid for, or how such property would be divided at the end of the relationship.

Whatever winds up happening, the only thing we know for certain is that the Family Relations Act is the law of the land, and this is the law you need to be thinking of when planning a new relationship. We can't say for certain that the Family Relations Act will be replaced; if it's replaced, we don't know what the replacement is going to look like or when it will come into effect. We also don't know how the replacement will deal with relationships that are ongoing when it comes into effect. Will there be an exemption for existing relationships? If the new law applies to existing relationships, will it apply right away or will there be a grace period?

I think that if you are planning on a new cohabiting relationship and need to be absolutely sure about the law that will apply to your relationship, you're best off waiting until the bill passes final reading. Your second best choice would be to have an agreement not about property but an agreement to negotiate an agreement about property when the content of the new law is known.

Vanier Institute Issues Report on Canadian Families

The Ottawa-based Vanier Institute has published a study on Canadian families based on the 2006 census. According to the CBC article on the study:

• 40% of marriages now end in divorce
• one in ten people live in an unmarried, common-law relationship
• 16.5% of same-sex couples marry

I'm sure there's more to the Institute's 211-page study than the CBA has reported; read the summary to learn more. You can also visit the website of Statistics Canada and get your data right from the horse's mouth.

The Ins and Outs of Separation... Mostly the Outs

Separation, in the sense of ending a relationship, is actually rather straightforward. What's required is a decision by one person to end the relationship and the announcement of that decision to the other person, although sometimes the announcement is made nonverbally... by moving out.

This post talks about some common misunderstandings about separation and then about how to do it.

The Legal Separation

There's no such thing as a "legal separation" in British Columbia. You don't need a document to say you're separated; you don't need to see a lawyer and you don't need to see a judge to separate.

In fairness, there used to be something called a judicial separation or a divorce a mensa et thoro (a divorce from bed and board). Judicial separations were once required to relieve a married couple of their common law duty to live together and support each other, but this sort of half-divorce hasn't been available for many, many years.

Separation Agreements

Sometimes people mean a separation agreement when they talk about a "legal separation." A separation agreement is a contract which records a couple's settlement of the legal issues resulting from the end of their relationship. Although you don't need a separation agreement in order to separate, separation agreements are an excellent way to avoid court.

How to Separate

A couple is separated once either or both people decides that the relationship is over, announces that decision and terminates the marriage-like aspects of the relationship, such as sleeping together, eating together, doing household chores for the benefit of the whole family and so forth.

The decision to separation only needs to be made by one person; the consent or permission of the other person is not required. The reason why a decision is required at all is to distinguish couples who live separate and apart for reasons like employment from couples who live separate and apart because they've split up.

Staying Under the Same Roof

Most couples move out and find new places to live after they separate. Some couples continue living together after they've separated, usually because living together is so much cheaper than living apart. The court will consider couples who have split up but continue to live under the same roof to be separated looking at things like:

1. whether the couple have stopped sharing the same bed or bedroom;
2. whether the couple have stopped having sex together;
3. the extent to which each person does their own chores;
4. whether the couple have opened separate bank accounts and begun to separate their finances; and,
5. whether the couple have stopped going to social functions as a couple.

Separation and the Legal End of a Relationship

For all unmarried couples, including common-law spouses, separation is all that's required to legally end a relationship.

Married spouses, on the other hand, must get a divorce to legally end their relationship... no matter how long they've been separated. There is no such thing as an "automatic divorce." A married couple will be married until they divorce, whether they've been separated for one year or thirty.

This difference is important for unmarried couples because certain limitation dates begin to run from the date of separation, the most important of which involve the right to apply for spousal support and, although this isn't quite accurate, the right to apply for child support for children brought into the relationship.

Future Posts

A future post will discuss a perennially popular topic, sex and new relationships after separation. Separation is a surprisingly broad subject. If there's a topic you'd like me to discuss please say so in a comment to this post.

The Present Effect of the Proposed Family Law Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

A lot of people have been asking about how the proposed Family Law Act, described in the recently-released White Paper (PDF), impacts on their present legal problems. This is an important question because the proposed new law differs from the current Family Relations Act quite significantly. The answer, however, is simple: the Family Law Act doesn't have any effect at all right now, and won't for some time.

The White Paper discusses a bunch of policy options about different issues in family law, and provides a sketch of what the legislation flowing from those options might look like. The Family Law Act isn't finished yet and some policy decisions still need to be made by the Attorney General's office, and as a result it's a long way from becoming law.

Although I expect that the draft Family Law Act which eventually makes its way to the legislature will look an awful lot like the act described in the White Paper, it would be unwise in the extreme to start making plans and drafting agreements on the assumption that what we presently see is what we'll eventually get.

From Draft Legislation to Law

When the new Family Law Act is ready to go, which won't be until some time in 2011, the provincial government will table the draft act as bill in the legislature, where the bill will be subject to debate by all parties and possibly be amended as a result. Since the present government has a healthy majority, the passage of the bill is almost a sure thing.

Once the bill passes its third and final reading, the Family Law Act will become law when it receives royal assent. "Royal assent" is essentially a constitutional tip of the hat to Queen and is given by the Lieutenant Governor on the advice of (and at the timing of) the government.

Taking Effect

Under s. 3 of the Interpretation Act, the commencement date of a new act is the date on which it receives royal assent, unless the act itself says otherwise. Because it's important that people be able to plan their lives in accordance with the law in force at the time, new laws rarely take effect earlier than the date of royal asset.

Under s. 4 of the act, a new act comes into force at the beginning of the day of its commencement, and any legislation it repeals ceases to have effect at the same time. "Coming into force" means becoming the official, binding law of the land. Legislation which is "repealed" has been cancelled or voided.

What all this means is that if the new act receives royal assent on 1 October 2011, for example, the new Family Law Act will be law, and the old Family Relations Act will cease to have effect, from October 1st forward. A new Family Law Act will not have a retroactive effect unless it says it has a retroactive effect, and that's unlikely.

Existing Family Relations Act Proceedings

Section 36 of the Interpretation Act says that "every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment."

Note that last bit. There are likely going to be a lot of proceedings under the old act which can't be "done consistently" with the new act (for example, claims for parental support or claims for child custody) and in cases like this the proceeding will have to continue under the old act. This is very important because s. 37 says that:

(1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.

(2) The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.

In other words, you don't get to argue that you should win a point because the new law is different than the old law. The court won't be allowed to draw any conclusions about proceedings under the old law just because the new law says something different than the old law.

Summary

The Family Law Act described by the White Paper doesn't exist except as a policy proposal. It may become one of the laws of British Columbia in the future, but that will require a complete draft Family Law Act passing through the legislature and receiving royal assent. Don't make any plans on the assumption that the law which eventually comes into force will look like the White Paper's proposal.

If the Family Law Act becomes law, it will have legal effect beginning on the day it receives royal assent unless the act itself says otherwise. At present, the Family Law Act described by the White Paper has no legal effect.

Family Relations Act proceedings existing at the time the Family Law Act comes into force will continue under the new act to the extent possible. Proceedings based on any provisions of the Family Relations Act not carried on in the new act will continue under the old act.

For more information about the White Paper, click on the "White Paper" label below.

Deadlines for Comment Approaching

A couple of very important due dates are fast approaching. Feedback on the proposed provincial Family Law Act is due by 8 October 2010. Comments should be titled "Family Law White Paper" and be sent to:

Civil Policy and Legislation Office
Justice Services Branch
BC Ministry of the Attorney General
PO Box 9222 Stn. Prov. Gov't.
Victoria, BC V8W 9J1

Fax: 250-387-4525

Email: CPLOFamilyLaw@gov.bc.ca

The deadline for written submissions to the Public Commission on Legal Aid is 31 October 2010. Comments should be sent to:

Public Commission on Legal Aid
10th Floor, 845 Cambie Street
Vancouver, BC V6B 5T3

Email: legalaid@publiccommission.org

Mark these dates in your calendar!

Click on the "White Paper" label below for more information about the proposed Family Law Act; click on the "legal aid" label for links and more information about the Public Commission.

Court Services Online Drops Criminal Fees

Court Services Online has dropped the fee charged to access its full criminal proceedings database. Fees are still charged to access the databases for civil and appeal proceedings, but even the limited information you can get without charge is enormously useful.

Criminal Proceedings: Full, free access to criminal and traffic court proceedings, including the date of the alleged offence, charges laid, appearance history and case disposition.

Civil Proceedings: Access to the list of current and historic civil proceedings, including small claims, family and divorce, probate, foreclosures and bankruptcies, enforcement and motor vehicle accident proceedings. Free search results show the names of all parties, the court registry, the file number and the date the action was commenced. Further access available for a fee.

Appeal Proceedings: Access to the list of current appeals. Free search results show the names of all parties, the file number and the date the appeal was commenced and the status of the appeal as active or closed. Further access available for a fee.

Deadlines for Comment to Legal Aid Commission

The public hearing process of the Public Commission on Legal Aid will begin on 20 September and end on 12 October 2010, after stops in Vancouver, Terrace, Prince George, Williams Lake, Kamloops, Kelowna, Victoria, Cranbrook and Chilliwack.

If you would like to give your comments to the commission in person, you must complete an Expression of Interest Form and have that in to the commission by 1 September 2010. Written submissions are due by 31 October 2010 and may be submitted by email to legalaid@publiccommission.org or by post to:

Public Commission on Legal Aid
10th Floor, 845 Cambie Street
Vancouver, British Columbia
V6B 5T3

Parenting Coordinators Publish Admissions Criteria

The BC Parenting Coordinators Roster Society has updated its website to publish the criteria for admission to the society as a parenting coordinator and application forms for download. According to the website, the minimum requirements for admission are:

1. membership in a self-regulating professional organization
   
2. maintenance of professional liability insurance
3. significant experience in a family practice focusing on separation and divorce
4. training in parenting coordination
5. training in mediation, arbitration and other dispute resolution processes
6. awareness of a variety of psycho-social issues relevant to parenting coordination

The society has also announced its adoption of the Guidelines for Parenting Coordination (PDF) of the Association of Family and Conciliation Courts as the practice standards of its members.

Rules on Chambers Applications Amended

By now most people involved in the family law justice system are aware that the new Supreme Court Family Rules which came into effect on 1 July 2010 have one particularly important flaw: the timelines for chambers application procedures in Rule 10-6 don't work. On 29 July 2010 an Order in Council was passed which ought to correct the timelines. Here are the key changes.

Calculation of Time: Time is now calculated as "business days," meaning days when the court is open for business. Weekends and statutory holidays are no longer counted.

Notice of Application: The length of this form is now capped at 10 pages. Changes are made to the text of the form to reflect the new timelines.

Time for Serving Notice of Application: Filed copies of the Notice of Application and new supporting affidavits must be served on the application respondent:

1. for interim applications, at least 8 business days before the date picked for the hearing;
2. for summary trials, at least 12 business days before the hearing date; and,
3. for applications to vary a final order, at least 21 business days before the hearing date.

Responding to an Application: The application respondent must now serve two copies of his or her Application Response and new affidavits on the applicant. A new subrule, (8.1), says that these materials must be filed in court and served on the applicant:

1. for interim applications, at least 5 business days after service of the Notice of Application;
2. for summary trials, at least 8 business days after service; and,
3. for applications to vary a final order, at least 14 business days after service.

This replaces the rule which allowed an application respondent to delay delivering his or her responding materials until two days before the hearing regardless of when they were available.

Responding to a Response: The applicant is required to file and serve copies of any new affidavits prepared in reply to the application respondent's materials by 4:00pm on the day that is one business day before the hearing date.

Application Records and Application Record Indices: The applicant is required to both file an Application Record in court and serve a copy of the index on the application respondent by 4:00pm on the day that is one business day before the hearing date.

These changes, including the change to the Notice of Application, have now been incorporated on my website into the chapters New Rules 101 and The Legal System > Interim Applications.

ClickLaw Posts Resources on the New Rules

ClickLaw, a legal education and information website run by Courthouse Libraries BC, has posted a helpful listing of resources on the new Supreme Court Family Rules.

White Paper Digest

Important Update: The Family Law Act discussed in the white paper was introduced on 14 November 2011. See my post "Family Law Act Introduced!" for more information.

The provincial government's white paper (PDF) on proposed changes to the Family Relations Act suggests some truly ground-breaking reforms which will take British Columbia to the leading edge of family law in Canada. This brief note will summarize the highlights of the white paper.

Alternatives to Court

• Alternative dispute resolution processes will be encouraged and placed on an equal footing with litigation.
• All family justice professionals will have a duty to inform people of dispute resolution processes that don't involve litigation.
• Settlements reached out of court may be set aside if there is a failure to disclose information relevant to the settlement.

Parenting Coordination

• Parenting coordinators will be given the authority to decide disputes involving the implementation of existing parenting arrangements.
• Judges may require parents to retain a parenting coordinator.

Arbitration

• The Commercial Arbitration Act will be amended to better accommodate arbitration in family law cases.
  

Agreements

• Provisions in agreements for the care of children may be set aside if they are not in the children's best interests.
• Provisions for child support may be set aside if they do not comply with the Child Support Guidelines.
• Agreements may be set aside where one person has taken advantage of the other.

Who is a Parent

• Birth mothers are presumed to be the child's mother except where she has given up this status through adoption or an agreement to carry the child as a surrogate she is prepared to comply with.
  
• People can be parents where they intend to have a child using donated eggs or sperm even though they don't have a genetic link to the child.
• Children can have more than two parents where people intend to have a child using donated eggs or sperm or a surrogate mother, and they sign an agreement which allows the donor or surrogate to have a parental relationship with the child.
• Surrogate mothers can't be forced to give up their child at birth by an agreement, they must do so voluntarily.

The Care and Control of Children

• Children's best interests will be the only factor taken into account in making decisions about their care and control.
• Family violence must be taken into account in assessing children's best interests, including violence to the other parent.
• Family violence is defined in the proposed act and includes an exemption for acts of self-protection or the protection of another person.

Guardianship

• Custody and guardianship will be replaced with the single term guardianship.
• Both parents will be the guardians of a child, except where a parent never lived with the child.
• Guardians will have parenting time with a child, not access. People, including parents, who aren't guardians will have contact with a child.
• The incidents of guardianship are called parental responsibilities. Parental responsibilities can be shared or allocated between guardians.

Guardianship on the Death or Incapacity of a Parent

• Guardians can appoint a person as the guardian of their children in the event of their death.
• Guardians can appoint a person as a standby guardian of their children in the event of their incapacity while they are alive.
• Standby guardians can only be appointed where a child has one guardian.

Enforcing Access

• Both levels of court will have expanded ways of dealing with both the denial of parenting time and the refusal to exercise parenting time.
• The court may order make-up time, counselling and mediation, and may, in extreme circumstances, impose a fine or a jail sentence.

Mobility

• A guardian wishing to move must give the other parent 60 days' notice of his or her intention to move.
• The initial burden lies on the parent proposing the move to show that the move is well intentioned. If the parent can show the move is well intentioned, the burden shifts to the other parent to prove that the move will not be in the child's best interests.
• When the parents have a more or less equal parenting schedule, the parent proposing the move must show both that the move is well intentioned and that it is in the child's best interests.
• The court may not consider whether a parent proposing a move would move with the child or without the child in mobility applications.

Family Assets

• The court will have less discretion to divide assets other than equally.
• Unmarried couples will be brought into the proposed act's scheme for the division of property where they have lived together for at least two years in a marriage-like relationship, or for a lesser amount of time if they have a child.
• Certain property will be excluded from division, including gifts, inheritances, court awards and property owned before the relationship.
• Interim orders for the distribution of assets will be available.
  

Triggering Events

• There will be only one event which triggers an entitlement to share in assets, separation.
• Unmarried parties must bring a claim for property division within two years of separation; married couples must bring their claims within two years of divorce.

Valuation Dates

• The valuation date will be the date of a court order dividing property or the date of an agreement dividing property.
  

Child Support

• Child support obligations can end before the child turns 19 if the child becomes a married or a common-law spouse or withdraws from the care of his or her parents.
• Child support orders can be varied if a parent has failed to make complete financial disclosure.

Spousal Support

• Unmarried couples will be brought into the proposed act's scheme for spousal support where they have lived together for at least two years in a marriage-like relationship, or for a lesser amount of time if they have a child.
• The language in the proposed act will be made more similar to the Divorce Act's language on spousal support.
• A new factor in awarding spousal support will require the court to consider whether an unequal division of property has satisfied the purpose of spousal support order.
• Spousal support orders can be varied if a spouse has failed to make complete financial disclosure.
• Spousal support orders are presumed to be binding on the payor's estate unless the order or agreement for support says otherwise.

Parental Support

• The present act's provisions for parental support will be canceled.
  

Safety

• The court may make protection orders where there are safety concerns.
• Protection orders may limit communication or otherwise restrict a party's behaviour and may be sought at any time in a family law case, whether a protection order has been claimed or not.
  
• Protection orders will be enforceable under s. 127 of the Criminal Code, through the criminal courts.

Invitation to Comment

Comments on the changes proposed in the white paper are open until 8 October 2010 and can be sent to the Attorney General at:

Civil Policy and Legislation Office
Justice Services Branch
BC Ministry of the Attorney General
PO Box 9222 Stn. Prov. Gov't.
Victoria, BC V8W 9J1

Fax: 250-387-4525

Email: CPLOFamilyLaw@gov.bc.ca

Make sure all communications are titled "Family Law White Paper."

The ministry webpage with links to the white paper can be found at www.ag.gov.bc.ca/legislation/. Additional background information, including the 2007 discussion papers, can be found at www.ag.gov.bc.ca/legislation/archive.htm#fra.

White Paper Published

Important Update: The Family Law Act discussed in the white paper was introduced on 14 November 2011. See my post "Family Law Act Introduced!" for more information.

The Attorney General's white paper on reform of the Family Relations Act is now online and available at www.ag.gov.bc.ca/legislation/pdf/Family-Law-White-Paper.pdf. The news release announcing the white paper can be found here and the contact information for comments can be found here. I'll make a digest of the white paper available here in a day or two.

New Family Relations Act to be Unveiled

The Attorney General will announce the release of a government white paper on Monday 19 July 2010 on the proposed content of a new Family Relations Act. The paper will provide a soup to nuts overview of the proposed changes and those few issues left open for debate. The government will be seeking written comment on the white paper until 8 October 2010; this is the last chance for public input into the reform of the Family Relations Act until it is introduced to the Legislature as a bill... at which point the debate will be up to your MLA.

The proposed changes will address:

• property rights of married and common-law couples
• guardianship of children and decision-making about children
  
• enforcing of access
• mobility/relocation issues
  
• spousal support
• mediation, arbitration and parenting coordination

I'll go into more detail once the white paper is officially released; I don't want to spoil the surprise. I will just say that the proposed changes are very, very exciting and offer the promise of a much welcome modernization of family law in this province.

This is the beginning of the end of a process begun in 2005 with the report of the Family Justice Review Working Group and will culminate in a final draft act being presented to government in early 2011. Of course when the government introduces the draft to the Legislature is up to the government and is anyone's guess.

For additional background to the reform project, click on the "Family Relations Act" label below.

Update for New Rules Complete

My website is now fully overhauled to accommodate the new Supreme Court Family Rules. Browse without fear.

New Practice Directions Released

Practice directions are instructions issued by the Chief Justice of a court for the guidance of lawyers and litigants appearing before the court. Practice directions are normally intended to address small matters not dealt with by the court's rules or to clarify the proper interpretation of the rules.

The Supreme Court has released a new set of practice directions for the new Supreme Court Civil Rules and Supreme Court Family Rules, available at www.courts.gov.bc.ca/supreme_court/practice_and_procedure/. The new practice directions replace all of the current directions and will take effect with the new rules, on 1 July 2010.

Commission on Legal Aid Launched

CBC today reports that a group of non-governmental organizations has banded together to launch a commission on the sorry state of legal aid in British Columbia, with the object of reporting their findings to the provincial government. The organizations involved in the project include the Canadian Bar Association British Columbia and the Law Society; good for them for doing this.

I've discussed the decline and fall of legal aid more than once. To read more of my natterings, click on the "legal aid" label below. Read CBC's story by clicking here.

New Court Forms Posted

Templates for the new court forms under the Supreme Court Family Rules are now available for download on my website, along with samples of what the forms ought to look like when they're filled out. In The Legal System > Starting an Action, in the downloads segment, you'll find:

• Form F3: Notice of Family Claim
• Form F8: Financial Statement
• Form F19: Notice of Judicial Case Conference

In The Legal System > Defending an Action, you'll find:

• Form F4: Response to Family Claim
• Form F5: Counterclaim

In The Legal System > Interim Applications (you'll need to scroll down a fair bit), you'll find:

• Form 31: Notice of Application
• Form 32: Application Response

In Marriage & Divorce > Divorce, you'll find the complete suite of forms required for the do-it-yourself divorce process:

• Form F1: Joint Notice of Family Claim
• Form F3: Notice of Family Claim
• Form F15: Affidavit of Personal Service
• Form F35: Requisition for divorce order
• Form F17: Requisition to search for a defence
• Form F36: Registrar's Certificate
• Form F38: Divorce Affidavit
• Form F37: Child Support Affidavit
• Form F52: Divorce Order
• Form F56: Divorce Certificate

Other form templates will be posted in the Resources & Links section when I can get to them.

Update: 22 April 2012

See my post "New Court Form Templates Posted" for a list of the Supreme Court family law forms amended as of 25 April 2012, and links to my templates for those forms.